Guilty even after proven innocent.
November 16, 2011 11:49 AM Subscribe
How can I prepare for an upcoming hearing for which we don't have a lawyer and where I'm desperately hoping for dropped charges or an acquittal.
Basically, I just need some tips on what to do in my friends hearing to give him the best chance of avoiding a trial (or whatever else they do). They won't assign him a public defender until the hearing.
The thing is that this is out of state, and every day that he has to show up in court is an incredible difficulty for him. What he's gone through already is probably worse than the punishments if he were to be convicted. The phrase "innocent until proven guilty" seems like a cruel joke right now. The truth is that he was guaranteed the punishment of the guilty as soon as the police cuffed him.
You are not his lawyer. I am not his lawyer. Actually, maybe I am his lawyer, since it seems we can't get a public defender until the hearing. But I want all charges to be dropped at the hearing. I don't think he could get his life back on track for years if this went to a trial.
Here's the story:
While travelling, my friend got in a screaming fight with his girlfriend. She attacked him (hitting and visibly injuring his head) and he held her back and pushed her such that she fell and scraped her knees. Police were called and both were arrested and booked on felonies (California 273.5.a). Basically it means that they willfully harmed each other and the police had documented evidence of injuries (his head, her knees).
It sounds a lot like a biased story, but it's not. He got attacked similarly in High School by a kid who was punching and kicking him, and his response was to grab the guys arms and hold them down. Literally didn't fight back, barely defended himself. His hearing was permanently damaged. Both were suspended. A lot of people witnessed the whole thing, including the teacher, and they tell the same story, even the kid who attacked him. (By the way, we contacted that kid and he is willing to testify about the incident. Good guy, very apologetic about the whole thing afterwards.)
It seems clear that he was avoiding a physical fight when he pushed her, not willfully trying to hurt her, and the arresting officer said that he would probably be released in a few hours without charges. That did not happen. The internet tells me that 273.5.a is often booked so that they can get a huge bail ($20,000 in this case, a devastating long-term financial burden on him and his family) and then the charges are reduced to 243.E.1. That lesser charge is battery, which is "any willful and unlawful use of force or violence."
So my great fear is that at this hearing they're going to lower the charge to battery, my friend will assert that what he did was not violent, let alone willfully violent or unlawfully violent, and he'll plead not guilty, and then this will begin a long expensive life-ruining legal process. Even if found innocent, the consequences of this will be insane, it's hard to explain without telling his life story.
So what can I expect at the hearing? Will there be time to present his side of the story? Will there be time to present evidence? Will we get the lawyer during the hearing or after? How can he prepare and how can I prepare to help him?
Basically, I just need some tips on what to do in my friends hearing to give him the best chance of avoiding a trial (or whatever else they do). They won't assign him a public defender until the hearing.
The thing is that this is out of state, and every day that he has to show up in court is an incredible difficulty for him. What he's gone through already is probably worse than the punishments if he were to be convicted. The phrase "innocent until proven guilty" seems like a cruel joke right now. The truth is that he was guaranteed the punishment of the guilty as soon as the police cuffed him.
You are not his lawyer. I am not his lawyer. Actually, maybe I am his lawyer, since it seems we can't get a public defender until the hearing. But I want all charges to be dropped at the hearing. I don't think he could get his life back on track for years if this went to a trial.
Here's the story:
While travelling, my friend got in a screaming fight with his girlfriend. She attacked him (hitting and visibly injuring his head) and he held her back and pushed her such that she fell and scraped her knees. Police were called and both were arrested and booked on felonies (California 273.5.a). Basically it means that they willfully harmed each other and the police had documented evidence of injuries (his head, her knees).
It sounds a lot like a biased story, but it's not. He got attacked similarly in High School by a kid who was punching and kicking him, and his response was to grab the guys arms and hold them down. Literally didn't fight back, barely defended himself. His hearing was permanently damaged. Both were suspended. A lot of people witnessed the whole thing, including the teacher, and they tell the same story, even the kid who attacked him. (By the way, we contacted that kid and he is willing to testify about the incident. Good guy, very apologetic about the whole thing afterwards.)
It seems clear that he was avoiding a physical fight when he pushed her, not willfully trying to hurt her, and the arresting officer said that he would probably be released in a few hours without charges. That did not happen. The internet tells me that 273.5.a is often booked so that they can get a huge bail ($20,000 in this case, a devastating long-term financial burden on him and his family) and then the charges are reduced to 243.E.1. That lesser charge is battery, which is "any willful and unlawful use of force or violence."
So my great fear is that at this hearing they're going to lower the charge to battery, my friend will assert that what he did was not violent, let alone willfully violent or unlawfully violent, and he'll plead not guilty, and then this will begin a long expensive life-ruining legal process. Even if found innocent, the consequences of this will be insane, it's hard to explain without telling his life story.
So what can I expect at the hearing? Will there be time to present his side of the story? Will there be time to present evidence? Will we get the lawyer during the hearing or after? How can he prepare and how can I prepare to help him?
Response by poster: Thanks for your insight.
So assuming nothing gets resolved and they reduce the charge to the non-felony battery charge at the hearing: will my friend be able to go back to work in his home state? Will he be forced to make frequent and expensive trips back to the county this happened in? Is it likely that there will be any sort of accommodation for the fact that he really really REALLY cannot afford to do that? He works, has legal employment, is on welfare, and told me he probably couldn't be a groomsman in my wedding because he couldn't afford a plane ticket. Is all of this stuff that we should explain to the judge, or will it just make him/her irritated?
posted by brenton at 12:21 PM on November 16, 2011
So assuming nothing gets resolved and they reduce the charge to the non-felony battery charge at the hearing: will my friend be able to go back to work in his home state? Will he be forced to make frequent and expensive trips back to the county this happened in? Is it likely that there will be any sort of accommodation for the fact that he really really REALLY cannot afford to do that? He works, has legal employment, is on welfare, and told me he probably couldn't be a groomsman in my wedding because he couldn't afford a plane ticket. Is all of this stuff that we should explain to the judge, or will it just make him/her irritated?
posted by brenton at 12:21 PM on November 16, 2011
I don't practice criminal defense in California, and never have. I'm giving you generally available information on what happens here in Oregon, which may be similar and hopefully is helpful:
I'm thinking the hearing must be an arraignment, or some sort of preliminary hearing, if he's not going to get a public defender until then. It sounds as if your friend has been released? Since it may just be an arraignment, most likely the only things that will happen is that your friend finds out what the final charges against him are, he gets a lawyer appointed (assuming he qualifies), the issue of release or bail is decided, he enters a plea (here we automatically enter a plea of not guilty, since it can always be changed later), and a trial date or other court date is set.
In Oregon, no evidence regarding the actual charge is presented at the arraignment, and the attorney there has very little information about the case beyond the actual charges. It is, unfortunately, unrealistic to expect the charges to be dropped at the hearing unless the state discovers they have some serious proof/witness problems.
If the person is in custody, or bail needs to be decided, that may be argued at the arraignment. Judges generally give some time for the attorney and their new client to talk so that the attorney has some information to make their arguments. Release conditions and bail are supposed to ensure community safety and prevent flight risk (i.e. ensure appearance at court dates), so the important information includes if the person has a place to live, ties to the community, prior convictions, previous failures to appear at court dates, etc. It is generally helpful to have friends and family members at arraignment if release or bail is going to be an issue. If release is denied and new information surfaces, in Oregon we can set another release hearing at a later time.
The arraignment begins the process of defending the case: the lawyer will obtain the police reports and other discovery, meet with your friend, and generally prepare for either trial or plea negotiation. This obviously takes time, usually months. Hopefully someone who practices in California can give you more information on all this.
posted by janerica at 12:22 PM on November 16, 2011
I'm thinking the hearing must be an arraignment, or some sort of preliminary hearing, if he's not going to get a public defender until then. It sounds as if your friend has been released? Since it may just be an arraignment, most likely the only things that will happen is that your friend finds out what the final charges against him are, he gets a lawyer appointed (assuming he qualifies), the issue of release or bail is decided, he enters a plea (here we automatically enter a plea of not guilty, since it can always be changed later), and a trial date or other court date is set.
In Oregon, no evidence regarding the actual charge is presented at the arraignment, and the attorney there has very little information about the case beyond the actual charges. It is, unfortunately, unrealistic to expect the charges to be dropped at the hearing unless the state discovers they have some serious proof/witness problems.
If the person is in custody, or bail needs to be decided, that may be argued at the arraignment. Judges generally give some time for the attorney and their new client to talk so that the attorney has some information to make their arguments. Release conditions and bail are supposed to ensure community safety and prevent flight risk (i.e. ensure appearance at court dates), so the important information includes if the person has a place to live, ties to the community, prior convictions, previous failures to appear at court dates, etc. It is generally helpful to have friends and family members at arraignment if release or bail is going to be an issue. If release is denied and new information surfaces, in Oregon we can set another release hearing at a later time.
The arraignment begins the process of defending the case: the lawyer will obtain the police reports and other discovery, meet with your friend, and generally prepare for either trial or plea negotiation. This obviously takes time, usually months. Hopefully someone who practices in California can give you more information on all this.
posted by janerica at 12:22 PM on November 16, 2011
Response by poster: Thanks janerica. His bail was set at $20,000 and a bail company accepted a (nonrefundable under any circumstances) payment of $2,000 from me to bail him out, pushing me into credit card debt for the first time in my life. So he's out and staying with family hundreds of miles away. I am an hour from his hearing, and he has some family that live here too.
I heard something about a process where the DA reviews the case and decides whether or not to press charges (I assume at some point before the hearing). I have also heard that usually they only get one side of the story--police reports etc... but that it's possible for a lawyer to present the other side of the story. Am I understanding this right? It seems our best bet would be to somehow have a voice, even just one or two paragraphs of information, when the DA reviews and decides whether to prosecute.
Is there a way to have any sort of input, however small, into that decision process? If not, could we, at the hearing, request that the DA reconsider after hearing a statement from us?
posted by brenton at 12:37 PM on November 16, 2011
I heard something about a process where the DA reviews the case and decides whether or not to press charges (I assume at some point before the hearing). I have also heard that usually they only get one side of the story--police reports etc... but that it's possible for a lawyer to present the other side of the story. Am I understanding this right? It seems our best bet would be to somehow have a voice, even just one or two paragraphs of information, when the DA reviews and decides whether to prosecute.
Is there a way to have any sort of input, however small, into that decision process? If not, could we, at the hearing, request that the DA reconsider after hearing a statement from us?
posted by brenton at 12:37 PM on November 16, 2011
I am a lawyer in California, a large portion of my practice is criminal defense. But I am not your lawyer, this is not legal advise, I would need to a lot more information for this to be legal advise.
You can talk to the DA before the charges are pressed, but you, as a private individual should not. Anything you say can be twisted at a later date, and admissions you make can be used against you. The DA you happen to talk to can be taken off the case and used as a witness to impeach your later testimony.
If really need to have an attorney talk to the DA for you. Otherwise it's better to wait til the arraignment, where your friend will, if he qualifies and requests one, have a public defender assigned to the case. If the public defender wants to, then, they can have the arraignment put over for a few weeks to give them a chance to speak to the DA. Is this a good idea? I have no idea, as I said, you'll need a lot more facts.
You do, however, have my sympathy. I have had several cases, which I am fairly certain I could have won had they gone through the fullness of time, be forced to a less than perfect resolution because the defendant was out of state, or simply lived very far from the court.
Good luck.
posted by bswinburn at 12:53 PM on November 16, 2011
You can talk to the DA before the charges are pressed, but you, as a private individual should not. Anything you say can be twisted at a later date, and admissions you make can be used against you. The DA you happen to talk to can be taken off the case and used as a witness to impeach your later testimony.
If really need to have an attorney talk to the DA for you. Otherwise it's better to wait til the arraignment, where your friend will, if he qualifies and requests one, have a public defender assigned to the case. If the public defender wants to, then, they can have the arraignment put over for a few weeks to give them a chance to speak to the DA. Is this a good idea? I have no idea, as I said, you'll need a lot more facts.
You do, however, have my sympathy. I have had several cases, which I am fairly certain I could have won had they gone through the fullness of time, be forced to a less than perfect resolution because the defendant was out of state, or simply lived very far from the court.
Good luck.
posted by bswinburn at 12:53 PM on November 16, 2011
Response by poster: bswinburn, I appreciate your non-advice and sympathy.
I am definitely receiving what you are saying about not talking to the DA since I might say something that can be used against me, I've seen that video (http://www.youtube.com/watch?v=i8z7NC5sgik).
But I'm wondering if even just a brief factual statement might be useful. E.g. (I'd have to get the real details later, but for arguments sake, something like this):
"In 1996 on January 51st at 4pm, Jack Doe attacked John Doe, punching him six times, permanently damaging his hearing as documented by Dr. House, MD in a medical analysis from later that week. John doe did not fight back or defend himself in any way except to grab and hold the arms of Jack doe. Jane Doe, Jim, Jerry and Julia all witnessed the event."
I can restrain myself from saying any more than that. Is this an AWFUL idea or is it possibly ok? How would I as a private individual, go about contacting the DA with such a statement?
posted by brenton at 1:26 PM on November 16, 2011
I am definitely receiving what you are saying about not talking to the DA since I might say something that can be used against me, I've seen that video (http://www.youtube.com/watch?v=i8z7NC5sgik).
But I'm wondering if even just a brief factual statement might be useful. E.g. (I'd have to get the real details later, but for arguments sake, something like this):
"In 1996 on January 51st at 4pm, Jack Doe attacked John Doe, punching him six times, permanently damaging his hearing as documented by Dr. House, MD in a medical analysis from later that week. John doe did not fight back or defend himself in any way except to grab and hold the arms of Jack doe. Jane Doe, Jim, Jerry and Julia all witnessed the event."
I can restrain myself from saying any more than that. Is this an AWFUL idea or is it possibly ok? How would I as a private individual, go about contacting the DA with such a statement?
posted by brenton at 1:26 PM on November 16, 2011
It is awful. There are only several instances in which it's ever a good idea to speak on someone else's behalf in court:
1) If the judge is considering what bail amount to set .
2) If the person is being sentenced and (after consulting with the person's attorney) you can add stuff that might mitigate the sentence
Beyond that, please just be a strong shoulder for your friend and don't muck up the case by making a bunch of statements.
posted by Happydaz at 1:54 PM on November 16, 2011 [1 favorite]
1) If the judge is considering what bail amount to set .
2) If the person is being sentenced and (after consulting with the person's attorney) you can add stuff that might mitigate the sentence
Beyond that, please just be a strong shoulder for your friend and don't muck up the case by making a bunch of statements.
posted by Happydaz at 1:54 PM on November 16, 2011 [1 favorite]
NO, DO NOT GIVE A STATEMENT TO THE DISTRICT ATTORNEY.
OMG PLEASE do not do this.
I am not a lawyer, but my uncle was a prosecutor for many years (and is now a judge). I have no doubt he would have immediately turned your statement against your friend. It's his job to prosecute, remember? It's not his job to be a nice guy.
If there are other witnesses then have your friend inform the public defender. Do not give this information to the DA or the police if they don't have it already. You don't know what the witnesses will say.
posted by desjardins at 1:54 PM on November 16, 2011
OMG PLEASE do not do this.
I am not a lawyer, but my uncle was a prosecutor for many years (and is now a judge). I have no doubt he would have immediately turned your statement against your friend. It's his job to prosecute, remember? It's not his job to be a nice guy.
If there are other witnesses then have your friend inform the public defender. Do not give this information to the DA or the police if they don't have it already. You don't know what the witnesses will say.
posted by desjardins at 1:54 PM on November 16, 2011
Knowing how your friend reacted when a teenage boy attacked him in high school would not persuade anyone to drop the charges. I'm sorry. And you don't want to start volunteering information about fights he was in to the prosecution before he even has a lawyer. Suppose, for example, they seize on the fact that his hearing was badly damaged -- well, he's learned his lesson now, somebody's threatening to hit him in the head, he can't afford to let them get away with that, you can tell he was thinking that way because he obviously didn't just hold on to her. That's just off the top of my head. I don't do this for a living.
Don't tell anybody unless he gets a lawyer who tells you to.
posted by Adventurer at 3:07 PM on November 16, 2011 [1 favorite]
Don't tell anybody unless he gets a lawyer who tells you to.
posted by Adventurer at 3:07 PM on November 16, 2011 [1 favorite]
Response by poster: The judge said the case was rejected and he was dismissed, bail was exonerated (except not because we paid a bondsman). I actually don't understand what that means... I think it means that the DA chose not to prosecute for now, but that they could decide to later. Is that likely?
posted by brenton at 8:06 PM on November 18, 2011
posted by brenton at 8:06 PM on November 18, 2011
This thread is closed to new comments.
Anyway, the long and the short of it: Your friend needs his attorney to do the work on this. It may not resolve at this hearing. There are lots of ways, however, to resolve a case other than a trial. The attorney who is appointed for your friend will know all these options. If that person seems like they don't know, then your friend asks the judge for a different attorney.
But to answer your immediate question: It is highly unlikely that this thing just goes away. An attorney is the next step, and that may mean some inconvenient waiting. Sorry. Your buddy might be able to get some sort of waiver of appearance so that he doesn't have to commute to court each time something happens. Not sure if that's do-able on felonies in California or not.
(I am not your attorney, and I'm happy that I don't practice law in California.)
posted by Happydaz at 11:59 AM on November 16, 2011 [1 favorite]